United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN, UNITED STATES MAGISTRATE JUDGE
S.M., K.W., K.S., and L.M. filed a motion for award of
attorneys' fees and non-taxable costs [ECF No. 203]
pursuant to 42 U.S.C. § 1988 following a jury verdict in
their favor in their 42 U.S.C. § 1983
Defendant Lincoln County, Missouri responded with a
memorandum in opposition to the motion [ECF No. 208]. The
court held a hearing on the motion at which attorneys for the
parties presented argument.
filed an action under Section 1983 seeking damages,
attorneys' fees, and costs from: (1) Scott Edwards, a
Lincoln County Sheriff's Department deputy and a tracker
for the drug court in Lincoln County; (2) Michael Krigbaum,
the Lincoln County Sheriff; (3) Heather Graham-Thompson, the
administrator of Lincoln County's drug court; and (4)
Lincoln County (collectively "Defendants").
Plaintiffs contended that Defendants violated their
Fourteenth Amendment right to bodily integrity. More
specifically, Plaintiffs alleged that Edwards engaged in
egregious sexual contact with them while they were
participants in Lincoln County's drug
court. Plaintiffs further asserted that Krigbaum,
Graham-Thompson, and Lincoln County were liable because they
failed adequately to hire, train, and supervise
2014, Krigbaum and Lincoln County filed a joint motion for
summary judgment against Plaintiffs. With respect to
Plaintiffs' claims against Krigbaum, Krigbaum and Lincoln
County argued that Krigbaum was entitled to qualified
immunity because Plaintiffs "failed to properly plead
and prove that . . . Krigbaum had notice, possessed
deliberate indifference, failed to take remedial action, or .
. . in any way caused . . . Edwards to commit unlawful acts
or caused Plaintiffs to be deprived of their constitutional
court denied Krigbaum's and Lincoln County's
motion. The court found there was "a genuine
issue of material fact about Lincoln County's and
Krigbaum's ability and duty to supervise Edwards [and] .
. . about Krigbaum's involvement with Drug Court and its
policies." In rejecting Krigbaum's contention
that he was immune from suit, the court concluded "there
[was] no evidence of whether Krigbaum received notice of a
pattern of unconstitutional acts" and "there [was]
a genuine issue whether any lack of notice [was] attributable
to Krigbaum turning a blind eye to portentous indications
such as Edwards taking drug court participants out of the
jail to smoke cigarettes."
(but not Lincoln County) filed an interlocutory appeal to the
United States Court of Appeals for the Eighth
Circuit. In his appeal, Krigbaum contended that
the court erred when it denied him qualified immunity from
Plaintiffs' Section 1983 claims alleging he was liable
for violating Plaintiffs' constitutional rights based on
supervisory liability and inadequate policies. The Eighth
Circuit reversed, holding that Krigbaum was entitled to
qualified immunity because Plaintiffs "did not meet
their burden to prove Krigbaum received notice of a pattern
of [Edwards'] unconstitutional acts." The Court
further concluded that Plaintiffs "presented no evidence
that Krigbaum had knowledge of sexual misconduct by Edwards
that would create an inference Krigbaum . . . consciously
disregarded a substantial risk of the constitutional harm
Edwards was causing."
reaching its decision, the Eighth Circuit distinguished
between the subjective standard of deliberate indifference
applicable to a failure-to-supervise claim against an
official sued in an individual capacity and the objective
standard of deliberate indifference applicable to a failure-
to-supervise claim against a municipality. In relevant
part, at footnote 3, the Eighth Circuit stated:
[t]he Supreme Court applied an objective standard of
deliberate indifference to a failure-to-supervise claim
against a municipality in Canton v. Harris, 489 U.S.
378, 390 (1989). We noted this distinction in Walton[ v.
Dawson, 752 F.3d 1109, ] 1117-18 [(8th Cir.
2014)], and the Supreme Court carefully explained it in
Farmer[ v. Brennan], 511 U.S. [825, ] 840-42
to the Eighth Circuit's decision, Lincoln County asked
this court to reconsider the denial of its motion for summary
judgment. The court denied Lincoln County's
motion for reconsideration. However, the court permitted
Lincoln County to file a second motion for summary judgment
to address the "current procedural and substantive
posture of the case."The court denied Lincoln
County's second motion for summary
court conducted a three-day jury trial of Plaintiffs'
remaining Section 1983 failure-to-supervise claim against
Lincoln County. During trial, Plaintiffs presented the
deposition testimony of Edwards, as well as the testimony of
Krigbaum, Graham-Thompson, and Plaintiffs, among others.
Plaintiffs also introduced various exhibits and an
audio-recording of an incident of Edwards' sexual
misconduct toward S.M. Upon conclusion of the trial, the
jury awarded S.M. $750, 000.00 and the other three Plaintiffs
$500, 000.00 each, for a total award of $2, 250,
000. The court entered judgment in accordance
with the verdict. Thereafter, Lincoln County filed a
motion for judgment as a matter of law, pursuant to Rule
50(b), and an alternative motion for new trial under Rule
59(b). The court denied Lincoln County's
post-trial motions.Plaintiffs filed a bill of taxable costs
and the court taxed costs in Plaintiffs'
Plaintiffs' motion for attorneys' fees and
request an award of $371, 885.00 in attorneys' fees, as
follows: (1) $232, 830.00 for W. Bevis Schock for 517.4 hours
at a rate of $450.00 per hour; (2) $101, 255.00 for Hugh A.
Eastwood for 288.9 hours at a rate of $350.00 per hour; and
(3) $37, 800.00 for Michael J. Fagras for 100.8 hours at a
rate of $375.00 per hour. Plaintiffs also seek an award
of $1, 721.85 in non-taxable costs for the costs of
delivering materials to the court and a law firm ($26.69) and
two attorneys traveling to attend the deposition of Edwards
in Virginia ($1, 695.16).
argue they are prevailing parties entitled to a fully
compensatory attorney's fee due to the substantial jury
verdict in their favor on their "significant claim"
against Lincoln County. Plaintiffs further assert the court
should award them the total amount requested because their
requested award is reasonable under the circumstances of this
respect to the hourly rates, Plaintiffs contend the
affidavits they submitted in support of their motion
demonstrate their requested hourly rates are consistent with
those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and
reputation. Plaintiffs also urge the court to apply current
hourly rates to all hours they expended on this approximately
four-year-old case, rather than "historic hourly
rates." With respect to the hours requested, Plaintiffs
assert they documented their hours contemporaneously with the
service rendered, and all the time expended was reasonable
and necessary to the prosecution of this lawsuit.
acknowledge "[i]t is a fair question whether Plaintiffs
should be compensated for the time spent on the
[interlocutory] appeal which . . . Krigbaum admittedly
won." However, Plaintiffs contend the court should not
eliminate from the award any hours Plaintiffs' counsel
spent on the appeal because the unsuccessful claim against
Krigbaum and successful claim against Lincoln County share a
common core of facts and are so intertwined that it is
difficult to separate work on the unsuccessful claim from the
successful claim. Plaintiffs note they do not seek: (1) an
enhanced fee; (2) compensation for time spent on C.A.'s
dismissed claims; or (3) compensation for time their
attorneys spent on any separate litigation to resolve issues
regarding insurance coverage for Edwards and Graham-Thompson.
memorandum in opposition, Lincoln County responds that the
total fees awarded should be less than the fee amount
requested due to duplicative and excessive hours. Lincoln
County also contends Plaintiffs are not entitled to any
compensation for work on Krigbaum's interlocutory appeal.
hearing on Plaintiffs' motion, Lincoln County stated that
it did not dispute the hourly rates requested, the hours
worked, or that Plaintiffs were prevailing parties. In
addition, Lincoln County did not object to either the amount
of non-taxable costs or that Plaintiffs were entitled to
non-taxable costs. Lincoln County further advised the court
that it challenged the fee award solely insofar as it
included hours related to the interlocutory appeal. Lincoln
County sought a deduction of the entire amount attributable
to the interlocutory appeal. More specifically, Lincoln
County asked the court to eliminate 118 hours, consisting of
70 hours for Mr. Schock, 35 hours for Mr. Eastwood and 13
hours for Mr. Fagras.
Jaffee v. Redmond, 142 F.3d 409 (7th Cir.
1998), Plaintiffs argued at the hearing that their attorneys
should be awarded fees for hours spent on the interlocutory
appeal. Plaintiffs also argued that: (1) the Eighth
Circuit's decision in the interlocutory appeal,
particularly footnote 3 of that opinion, contributed to the
subsequent progress of this lawsuit; and (2) Krigbaum was the
"center" or "heart" of the case and his
testimony and conduct were important to the success of
Plaintiffs' claim against Lincoln County. Plaintiffs
also relied on Jenkins ex rel. Jenkins v. Missouri,
127 F.3d 709 (8th Cir. 1997)
("Jenkins") and Casey v. City of
Cabool, Mo., 12 F.3d 799 (8th Cir. 1993), to
support an award of fees for the interlocutory appeal.
the hearing, Plaintiffs filed a joint statement advising that
$29, 810.00 of their fee request was for services their
attorneys rendered on the interlocutory appeal. Lincoln
County did not challenge the amount Plaintiffs attributed to
their attorneys' work on the interlocutory appeal.
Standard for awarding fees under Section 1988
has discretion to award reasonable attorneys' fees to a
party who prevails in a claim filed under 42 U.S.C. §
1983. 42 U.S.C. § 1988(b). Importantly, a trial
court's "discretion to deny attorneys' fees to a
prevailing plaintiff is narrow." Jenkins, 127
F.3d at 716.
Eighth Circuit reviews legal issues relating to fee awards
de novo and factual determinations for abuse of
discretion. See Cody v. Hillard, 304 F.3d 767, 772
(8th Cir. 2002). The party seeking the award must
submit evidence supporting the requested hours and rates,
making "a good faith effort" to exclude hours that
are "excessive, redundant, or otherwise
unnecessary." Hensley v. Eckerhart, 461 U.S.
424, 433-34 (1983). The fee applicant must also use
"billing judgment" to exclude hours that would not
properly be billed to a client, because time not properly
billed to a client should not be paid by an adversary
pursuant to statutory authority. Id. at 434.
determine reasonable attorneys' fees under Section 1988,
"the most useful starting point is . . . the number of
hours reasonably expended on the litigation multiplied by a
reasonable hourly rate." Id. at 433. This
calculation is referred to as the "lodestar
approach." See, e.g., Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010). There
is a strong presumption that the lodestar calculation
represents a reasonable fee award. City of Burlington v.
Dague, 505 U.S. 557, 562 (1992).
plaintiff has only limited success, the extent of that
success "is a crucial factor in determining the proper
amount of an award of attorneys' fees under 42 U.S.C.
§ 1988." Hensley, 461 U.S. at 440. The
court must consider whether a plaintiff's unsuccessful
claims "were unrelated to the claims on which [the
plaintiff] succeeded" and whether "the level of
success" achieved by the plaintiff "makes the hours
reasonably expended a satisfactory basis for making a fee
award." Id. at 434. When a plaintiff's
claims "involve a common core of facts or [are] based on
related legal theories[, m]uch of counsel's time will be
devoted generally to the litigation as a whole."
Id. at 435. In that situation, "the district
court should focus on the significance of the overall relief
obtained by the plaintiff in relation to the hours reasonably
expended on the litigation." Id.
a plaintiff has obtained excellent results, [the
plaintiff's] attorney should recover a fully compensatory
fee, [which will n]ormally . . . encompass all hours
reasonably expended on the litigation." Id.
Significantly, the Eighth Circuit has explained this as
meaning that a "plaintiff who has won excellent results
. . . is entitled to a fully compensatory fee award,
which will normally include time spent on related matters
on which [the plaintiff] did not win."
Jenkins, 127 F.3d at 716 (emphasis added).
however, "a plaintiff has achieved only partial or
limited success, the product of hours reasonably expended on
the litigation as a whole times a reasonable hourly rate may
be an excessive amount." Hensle ...